Citation Nr: 9927336
Decision Date: 09/23/99 Archive Date: 10/05/99
DOCKET NO. 95-21 146 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant and Paulette L.
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty in the Army from October
1948 to April 1955. He was a master sergeant at discharge in
April 1955.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a May 1994 rating decision by the Winston-Salem,
North Carolina Regional Office (RO) of the Department of
Veterans Affairs (VA). A notice of disagreement was
received in June 1994. A supplemental statement of the case
addressing this issue was sent to the veteran in July 1994.
A substantive appeal was received in September 1994.
In a June 1997 decision, in pertinent part, the Board denied
the veteran's claim for service connection for PTSD.
Thereafter, the veteran appealed, in pertinent part, this
issue to the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court"). In
March 1999, the Court vacated the portion of the Board's June
1997 decision with regard to the denial of service connection
for PTSD and remanded this issue to the Board for further
proceedings consistent with the Court's opinion. Judgment
was entered in April 1999.
REMAND
In the Court's March 1999 decision, the Court indicated that
an attempt should be made to obtain the veteran's service
unit records and to determine if the veteran's unit engaged
in combat and whether the veteran engaged in combat. The
Court also stated that the veteran should be provided an
opportunity to submit additional evidence regarding his
alleged combat experiences in Korea. As such, the Board
notes that further action must be initially accomplished by
the RO. However, the Board will initially review the history
of the veteran's claim in order to ensure that all necessary
action is undertaken.
In a letter dated in May 1993 the veteran stated that his
PTSD was the result of his combat experiences. In a hearing
before personnel at the RO in February 1994, the veteran
testified that he injured his ankle in basic training and he
was going to be discharged as a result of this injury, but he
was approached by a civilian and an officer who stated that
if he wanted to stay in the service, he would have to do some
things that the veteran did not consider "normal."
However, he related that since he did not want to leave the
service, he agreed to perform these acts and he was sent to
Guam to perform surveillance on a lieutenant and a civilian
woman. Then, he testified, he returned to Fort Eustis,
Virginia to perform surveillance on a corporal who "[T]hey
claimed" lightning struck but he "knew different." He
testified, further, that then he went to Korea and went to an
island where there were POWs and he was told to go to the
back gate where somebody might try to escape and he should
kill the person and he did kill somebody. He went on in his
testimony that then "they" sent a plane to pick him off the
island and he was taken to the 223rd Infantry Regimen, and
"they" had him going out alone, on patrol at night,
"getting prisoners" and he brought back about three. He
testified that after the prisoner was interrogated "they'd
ask me to get rid of him, and I'd get rid of him." One
night he went out and "come up on five of them," and he
shot them all, he testified. Then, he continued in his
testimony, "they" wanted him to learn how to fly a plane
and he was taught how to fly the plane, but not how to land
it, so he would bail out and be picked up by the Coast Guard
and/or Navy. Once he took off, the veteran related that he
looked back in the plane and there were five bound people
there. He related that he bailed out of the plane, which
thereafter crashed. He indicated that he was picked up. He
testified that he did not mingle in service and was more or
less by himself and did not do formations. He thought it was
probably an intelligence group which gave him orders in
service and for which he was working, but he did not know
anyone's name who gave him these orders, he related. He was
told not to tell anyone, or be close to anyone or associate
with anyone, he stated. The veteran at a September 1994
hearing repeated the claimed incidents that occurred in
service that he had related in the February 1994 hearing.
A letter was received from the veteran in November 1994 which
began "[m]emories of his military actions." In that
letter, the veteran indicated that he was assigned to a
front-line combat unit for ten months to a year laying
communications lines and single-handedly performing
reconnaissance patrols along the 38th parallel. He was
assigned his own bunker and was alone most of the time.
In a letter to President William J. Clinton dated in May
1993, the veteran stated that he was recruited by the Central
Intelligence Agency (CIA) during basic training in 1948 and
performed "work" for CIA until his discharge in 1955. A
"civilian" told the veteran at his discharge that there was
no record of his service to the CIA.
In a letter received in June 1995 the veteran stated that the
received the Combat Infantry Badge and the Korean Service
Medal with three bronze stars.
The Board notes that a DA Form 20 received in October 1993
indicates that the veteran's military occupational
specialties were rigger, tractor and scraper operator,
construction foreman and combined construction specialist.
This form also places the veteran in Korea from August 30,
1952, to October 24, 1953, only. It indicates that the
veteran was assigned to Headquarters Company, 223rd Infantry
Regiment. The form notes that the veteran was awarded the
Korean Service Medal with three Bronze Service Stars and the
United Nations Service Medal. Although the veteran claims to
have received the CIB, this form does not list a CIB or any
other combat award.
During the course of the veteran's appeal, the regulation
governing service connection for PTSD was amended, 38 C.F.R.
§ 3.304(f), in accordance with the Court's decision in Cohen
v. Brown, 10 Vet. App. 128 (1997). The effective date of the
changes in the regulation was March 7, 1997. The Board notes
that the Court has held that where the law or regulation
changes after a claim has been filed or reopened, but before
the administrative or judicial appeal process has been
concluded, the version most favorable to the veteran will
apply unless Congress provided otherwise or permitted the
Secretary to provide otherwise and the Secretary did so.
Karnas v. Derwinski, 1 Vet. App. 308 (1990). As such, the
veteran's claim must be considered under the regulation in
effect prior to March 7, 1997 as well as the regulation in
effect as of March 7, 1997.
The veteran contends that he is entitled to service
connection for PTSD since he was exposed to stressors during
service which resulted in his development of PTSD. Upon
reviewing the veteran's contentions, the Board notes that it
appears that the veteran alleges both combat and non-combat
stressors.
A review of the records reflects that the veteran has been
diagnosed as having PTSD. In a private progress note dated
in January 1993, Edwin W. Hoeper, M.D., diagnosed the veteran
with prolonged PTSD; however, it is unclear what stressor
resulted in PTSD. A psychiatric examination report of Khaja
M. Ahsanuddin, M.D., dated in January 1993 is of record. The
veteran reported to the physician that he performed horrible
acts in service to include shooting some POWs in cold blood
and deliberately crashing a plane to kill five POWs. A
diagnosis of PTSD was rendered, but it appears that the
physician based the diagnosis of PTSD on noncombat related
post-service stressors. A private mental health record from
the Foothills Area Program dated in January 1994 is of
record. The veteran stated that he served in Korea about the
whole time of the Conflict and was wounded and captured
during that time. The social worker arrived at a provisional
diagnosis of PTSD. A VA examination was conducted in April
1994. The veteran reported murdering people in service and
indicated that he was probably ordered by the CIA. The
veteran was diagnosed as having dysthymia, primary type, late
onset moderate; anxiety disorder, not otherwise specified,
moderate; and alcohol dependence, moderate, by history. An
examination dated in July 1994 from D. Scott Cutting, Ph.D.,
is of record. The veteran claimed to have killed POWs after
interrogation and when they attempted to escape. He claimed
to have parachuted from an airplane leaving five POWs to die
in the ensuing crash. Diagnoses of depression and PTSD were
rendered. A VA consultation sheet dated in August 1994 is of
record. The veteran related the POW incident and the plane
crash. PTSD was diagnosed. VA treatment records dated in
1994 and 1995 note similar recollections of his service
during the Korean Conflict. PTSD was diagnosed. A
psychiatric evaluation dated in January 1995 from Robert J.
Sena, M.D., is of record. The veteran reported the same
recollections as discussed above. He also stated that he
worked for Army Intelligence on special assignments.
Diagnoses of chronic PTSD and a single episode of major
depression were rendered.
Applicable law provides service connection will be granted if
it is shown a particular disease or injury resulting in
disability was incurred or aggravated during active duty. 38
U.S.C.A. §§ 1110, 1131. In addition, in adjudicating a claim
for PTSD, the applicable VA regulation states that service
connection for PTSD requires medical evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed inservice stressor actually
occurred, and a link, established by medical evidence between
current symptomatology and the claimed inservice stressor.
38 C.F.R. § 3.304(f). In the case of Cohen, 10 Vet. App. 128
(1997), the Court issued directives to be followed in cases
where the issue is service connection for PTSD. In sum, in
the Cohen case, the Court confirmed that the evidence must
show that the veteran has a clear diagnosis of PTSD, that the
veteran was exposed to a stressor(s) during service (which
may be combat or non-combat service), and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor.
In the Cohen case, the Court provided distinctions between
non-combat and combat service. In cases of non-combat
service, the Court indicated that 38 U.S.C.A. § 1154(b) is
not applied. If the veteran did not serve in combat and his
stressor is therefore, not combat-related, the Court
indicated that the veteran's own lay testimony is
insufficient to establish the occurrence of the stressor and
must be corroborated by credible supporting evidence. The
Cohen case indicated that credible supporting evidence
includes lay/comrade statements as well as service department
verification. If the veteran engaged in combat during
service, his claim must be considered under the reduced
evidentiary threshold pursuant to 38 U.S.C.A. § 1154(b) for
combat veterans. In the Cohen case, the Court stated that
38 C.F.R. § 3.304(f) and VA manual provisions are deficient
in that they do not reflect the relaxed requirements of
38 U.S.C.A. § 1154(b). Under 38 U.S.C.A. § 1154(b), the
combat veteran's testimony alone is enough to establish the
occurrence of a stressor unless it is inconsistent with the
circumstances, conditions, or hardships of service or unless
the Board finds that, by clear and convincing evidence, a
particular stressful event did not occur. The Court stated
that where the veteran had combat and stressor(s) is related
to combat, the veteran's lay testimony must be accepted as
conclusive.
In this case, as indicated, the veteran alleges both combat
and non-combat stressors. With regard to his combat
stressors, the Board observes that a determination must be
made as to whether the veteran served in combat and as to
whether any of the alleged stressors factually occurred. The
Board notes that the RO has not verified that the veteran or
his unit had combat service. In light of the veteran's
contentions, the Board finds that the RO should determine
whether or not the veteran's unit and the veteran served in
combat. In addition, his complete service administrative and
personnel records should be obtained. Specifically, the RO
should request from the appropriate service department source
copies of the veteran's complete service
personnel/administrative file, duty assignments etc., to
include his service unit records. In addition, the RO should
contact the U.S. Armed Services Center for Research of Unit
Records (USASCRUR), formerly known as the U.S. Army & Joint
Services Environmental Support Group (ESG) for verification
of whether the veteran served during combat.
With regard to his non-combat stressors, the RO should
provide the veteran an opportunity to corroborate his
allegations with credible supporting evidence such as
lay/comrade statements and/or service department
verification.
As noted above, the veteran has been diagnosed as having
PTSD. In the Cohen case, the Court noted that under 38
C.F.R. § 3.304(f), a current medical diagnosis of PTSD must
be an "unequivocal" one. The Court further explained that
a PTSD diagnosis by a mental health professional must be
presumed to have been made in accordance with Diagnostic and
Statistical Manual of Mental Disorders (DSM) criteria. In
other words, a diagnosis of PTSD by a mental health examiner
will be presumed to be in accordance with DSM criteria as to
adequacy of symptomatology and sufficiency of stressor. In
discussing the sufficiency of a stressor to support a
diagnosis of PTSD, the Court pointed out that under the DSM-
III-R a psychologically traumatic event(s) must be shown to
have had the potential of evoking significant symptoms of
distress in almost everyone. However, the Court further
noted that under DSM -IV a subjective test had been adopted.
Specifically, in order for a stressor to sufficiently support
a diagnosis of PTSD: (1) a person must have been exposed to a
traumatic event in which the person experienced, witnessed,
or was confronted with an event that involved actual or
threatened death or serious injury, or a threat to the
physical integrity of self or others; and (2) the person's
response involved intense fear, helplessness, or horror. The
Court explained that DSM-IV's "stressor sufficiency"
requirements involved medical questions requiring examination
and assessment by a mental-health professional.
The Board notes that the veteran's stressors must be
factually verified in order for there to be a valid diagnosis
of PTSD based on any of the alleged stressors. That is, if a
stressor did not factually occur, then a diagnosis based upon
that stressor would not be valid. As such, once the RO has
attempted to verify the veteran's alleged stressors as
indicated above, the veteran should be afforded a VA
psychiatric examination by a psychiatrist who has been
afforded all of the aforementioned information and records as
well as the criteria of DSM III and DSM IV. In regard to
PTSD, the RO must specify for the examiner the stressor or
stressors that it has determined are established by the
record and the examiner must be instructed that only those
events may be considered for the purpose of determining
whether exposure to a stressor in service has resulted in
current psychiatric symptoms and whether the diagnostic
criteria to support the diagnosis of PTSD have been
satisfied. The examiner should integrate any previous
psychiatric findings and diagnoses with current findings to
obtain a true picture of the nature of the veteran's
psychiatric status. If a diagnosis of PTSD is deemed
appropriate, the examiner should comment upon the link
between the current symptomatology and one or more of the
inservice stressors, if any, found to be established by the
RO. The report of examination should include the complete
rationale for all opinions expressed. The criteria for PTSD
contained in both DSM-IIIR and DSM-IV must be utilized by the
examiner in determining whether the veteran has PTSD as a
result of the inservice stressors provided by the RO.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, this matter is Remanded for the following
action:
1. The RO should request from the
appropriate service department source
copies of the veteran's complete service
personnel/administrative file, duty
assignments etc., to include his service
unit records as well as all available
service medical records.
2. The RO should contact the USASCRUR,
7798 Cissna Road, Springfield, Virginia
22160, for verification of whether the
veteran served during combat. The
USASCRUR should also verify whether the
veteran: (1) was sent to Guam to perform
surveillance on a lieutenant and a
civilian woman; (2) returned to Fort
Eustis, Virginia to perform surveillance
on a corporal who "[T]hey claimed"
lightning struck but he "knew
different;" (3) was recruited by the
CIA; (4) went to Korea and went to an
island where there were POWs and he was
told to go to the back gate where
somebody might try to escape and he
should kill the person and he did kill
somebody; (5) was picked up off the
island and he was taken to the 223rd
Infantry Regimen where he went on patrol
at night, alone, to "get prisoners" and
he brought back about three; (6) killed
those three prisoners; (7) later shot
five prisoners; (8) flew another plane,
bailed out of the plane, the plane
crashed killing prisoners; (9) was picked
up by the Coast Guard and/or Navy after
bailing out of the plane; (10) was
assigned to a front-line combat unit for
ten months to a year laying
communications lines and single-handedly
performing reconnaissance patrols along
the 38th parallel; (11) was awarded the
Combat Infantry Badge and the Korean
Service Medal with three bronze stars;
(12) was wounded and captured during
service; (13) engaged in combat.
3. The RO should contact the veteran and
inform him that he may submit lay/comrade
statements or other evidence which
support his report of the alleged
stressors.
4. The RO should obtain all VA medical
records of the veteran, which are not
currently in the claims file. These
records should be associated with the
claims file.
5. With the additional information
obtained and the evidence currently of
record, the RO should review the file and
prepare a summary of the stressors
experienced by the veteran, making a
specific determination whether the
evidence supports such stressors that are
alleged. In addition, the RO should
specifically determine if veteran's unit
and the veteran served in combat. The RO
should, for each claimed stressor which
is not verified, make a finding whether
the veteran's claim regarding the
stressor is credible.
6. When all of the development as noted
above has been completed and, if any
stressor is established by the RO, the RO
should afford the veteran a VA
psychiatric examination by a psychiatrist
who has been afforded all of the
aforementioned information and records as
well as the criteria of DSM III and DSM
IV and all of the records to include all
of the records added to the claims file
pursuant to this remand. The RO must
specify for the examiner the stressor or
stressors that it has determined are
established by the record and the
examiner must be instructed that only
such stressor(s) may be considered for
the purpose of determining whether
exposure to a stressor in service has
resulted in PTSD and whether the
diagnostic criteria to support the
diagnosis of PTSD have been satisfied.
If a diagnosis of PTSD is deemed
appropriate, the examiner should comment
upon the link between the current
symptomatology and one or more of the
inservice stressors, if any, found to be
established by the RO. The report of
examination should include the complete
rationale for all opinions expressed.
The criteria for PTSD contained in both
DSM-IIIR and DSM-IV must be utilized by
the examiner in determining whether the
veteran has PTSD as a result of the
inservice stressors provided by the RO.
7. The RO should then review the record
and ensure that all the above actions
have been completed. When the RO is
satisfied that the record is complete and
the psychiatric examination is adequate,
the RO should review all of the evidence
of record and readjudicate the issue of
entitlement to service connection for
PTSD under both the old and new versions
of 38 C.F.R. § 3.304(f) and in light of
the Cohen case. If the action taken is
adverse to the veteran, he and his
representative should be furnished a
supplemental statement of the case that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations to
include the new version of 38 C.F.R.
§ 3.304(f). They should also be afforded
the opportunity to respond to that
supplemental statement of the case before
the claim is returned to the Board.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration. The veteran need take no action until he is
further informed, but he may furnish additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). No inference should be drawn regarding the final
disposition of the claim as a result of this action.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).